On April 9, 2018, BC's Minister of Labour introduced Bill 6, the Employment Standards Amendment Act, to the BC Legislature. Bill 6 includes proposed amendments to the Employment Standards Act ("ESA") to bring certain types of leave into line with the Federal government's recent changes to the Employment Insurance Act so that employees are entitled to job protection under the ESA for the same amount of time they are entitled to employment insurance benefits. In addition, Bill 6 also creates two new types of job-protected leave for death or crime-related disappearance of a child.

The changes proposed by Bill 6 can be summarized as follows:

Leave Previous Entitlement Amended Entitlement
Maternity May begin at any time 11 weeks before due date and the actual birth date and last up to 17 weeks May begin 13 weeks before due date and last up to 17 weeks
Parental Up to 35 weeks if pregnancy leave taken

If pregnancy leave not taken, up to 37 weeks beginning after birth and within 52 weeks of birth

For adopting parents, up to 37 weeks that must begin within 52 weeks of placement

Combined pregnancy and parental leave limited to 52 weeks

Up to 61 weeks if pregnancy leave taken

If pregnancy leave not taken, up to 62 weeks, which must begin within 78 weeks of birth

For adopting parents, up to 62 weeks that must begin within 78 weeks of placement

Combined pregnancy and parental leave limited to 78 weeks (18 months)

Compassionate care Up to 8 weeks, must be taken within a 26 week (or prescribed) period Up to 27 weeks that must be taken within a 52 week period

Bill 6 also entitles a parent whose child under 19 years of age goes missing due to a crime to 52 weeks of unpaid leave. If the child is found alive during the leave, the leave continues for a maximum of 14 days. If the child is found deceased, this leave ends immediately. Bill 6 also separately entitles a parent whose child under 19 years of age dies to 104 weeks of unpaid leave immediately after the death under any circumstances or after the child is found deceased following a disappearance. This leave is in addition to three days of bereavement leave currently available. Both of these leaves must be taken in a single continuous period, or on an intermittent basis with the employer's consent.

Bill 6 also includes transitional provisions that dictate whether the previous or amended entitlements apply in each circumstance. For maternity leave, subject to the specified notice requirements, the effect of the transition rules is that employees who are already on leave, who have previously provided notice to go on leave, and those who provide notice in the future will all be entitled to the increased leave. For parental leave, the entitlement to the increased leave depends on whether the employee's child was born or placed with the adopting employee on or after December 3, 2017. Finally, for compassionate care leave, the increased entitlement is available not only to those who have given notice of the leave or who are already on leave but also to those whose leave commenced within 52 weeks prior to the date the amendments come into effect.

As a result, employers may be required to extend the backfill measures that had previously been arranged for the original length of a leave. The amendments do not alleviate any obligations that were previously imposed on employers concerning, for example, payments to pension, medical or other benefits plans that must be made on behalf of employees during statutory leaves. Service during leaves will continue to be recognized for all purposes such as vacation entitlement.

Bill 6 passed third reading on April 12, 2018 and will go into force upon Royal Assent. Other amendments to the Employment Standards Act are expected in the future as well as amendments to the Labour Relations Code and Occupational Health & Safety related legislation.

Written with the assistance of Dallan Poulin, articling student.


About Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global law firm. We provide the world's preeminent corporations and financial institutions with a full business law service. We have 3800 lawyers and other legal staff based in more than 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

For more information about Norton Rose Fulbright, see nortonrosefulbright.com/legal-notices.

Law around the world
nortonrosefulbright.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.